going to get along in this world, as we have to do, we simply have to get away from these old ways of surveillance and the mystique of secrecy and try to live openly together. I think we can do it.

Senator KENNEDY. Thank you very much, Mr. Clark. We certainly appreciate your insights and your help.

Our next witness, Mr. Nathan Lewin, was Assistant to the Solicitor General Archibald Cox when Robert Kennedy was Attorney General.

I know Robert Kennedy had a great deal of respect for your legal abilities and for your counsel and judgment. I also know of the high regard John Doar had for your work in the Civil Rights Division. And of course your talents were of great value to Nicholas Katzenbach when you subsequently worked for him at the State Department. You are now a practicing attorney in the District of Columbia after a most distinguished career of public service.

We welcome you.

STATEMENT OF NATHAN LEWIN, FORMER ASSISTANT TO THE SOLICITOR GENERAL OF THE UNITED STATES

Mr. LEWIN. Thank you, Mr. Chairman. I had prepared a rather technical, I suppose, and lengthy statement which, because of the hour and because I will have to be in court at 2 o'clock this afternoon, I would really prefer just to submit for the record and just note that really, the tone and tenor of that statement is directed toward pointing up that if ever the Department of Justice were to seek some amendatory legislation in line with the opinion in the Keith case, in line with Justice Powell's suggestion in that opinion, I think it would be very damaging to the national interest if very many of the other protections that are presently included in title III of the Safe Streets Act which have not received much public atten-tion because of the administration's effort to obtain warrantless wiretaps, that these many other protections are in very many ways greater safeguards than even the judicial warrant. I share Mr. Clark's skepticism about the efficacy of judicial warrants alone to prevent rash judgments with regard to tapping.

I also share his view that the most effective way, really, that government can be subjected to public scrutiny and criticism in this are is if they are required to make what they do public, and there are provisions in title III which require that the Department of Justice advise those who are subjects of taps and bugs of the fact that they have been subjected to it, and in fact, allow them civil damage suits if those taps and bugs are not consistent with the act.

I think that those provisions may in the long run, if they are applied to all taps and bugs, prove to be a very effective deterrent. [Prepared statement follows:]

STATEMENT OF NATHAN LEWIN BEFORE THE SENATE SUBCOMMITTEE ON
ADMINISTRATIVE PRACTICE AND PROCEDURE

The Supreme Court's ruling in United States v. United States District Court for the Eastern District of Michigan, No. 70-153, decided June 19, 1972, rests principally on two legal conclusions. The first resolves a question of statutory

interpretation and the second is a constitutional holding. As a framework for any prepared statement and further discussion, it might be useful to outline these holdings.

First, the Department of Justice has relied, in its defense of warrantless wiretapping and eavesdropping in courts throughout the country, on the language of Section 2511 (3) of the United States Criminal Code, which was part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Title III, of course, was the portion of the 1968 law which authorized electronic surveillance upon issuance of a judicial warrant. The specific language of the law which the Department of Justice viewed as an authorization of tapping or bugging without a warrant says that no provision in the Act should limit "the constitutional power of the President to take such measures as he deems necessary" for any of five specified purposes related to "national security" (as those terms are broadly used).

The Department of Justice had argued in lower courts that Congress intended by this language to confer on the President (or upon the Attorney General, to whom the President could delegate his power) statutory authority to engage in electronic surveillance for these "national security" purposes even without satisfying the conditions which the law prescribes generally for bugging and tapping. A unanimous Supreme Court, on its examination of the language and history of the provision, held that Section 2511 (3) was not intended to expand, contract or even define the President's powers. It was, rather, “a Congressional disclaimer and expression of neutrality." In other words, the Court said that Congress was intending by this provision to say no more than that no implication should be extracted from the Act as to any Congressional policy one way or the other on the constitutional question of "national security" surveillance. And this ruling led the Court naturally into its constitutional discussion.

In the second and constitutional portion of its opinion, the Court ruled that the Fourth Amendment's protection against unreasonable and unwarranted searches and seizures prohibits electronic surveillance without prior judicial approval even when the Executive Branch believes that such surveillance is necessary for domestic security. In this part of his opinion, Justice Powell considered and rejected each of the Department of Justice's asserted justifications for unwarranted bugging and tapping in domestic security cases. He noted that "intelligence gathering"-no less than investigation of criminal activity— must be conducted in accordance with the Fourth Amendment, and that "this requires an appropriate prior warrant procedure." (The Justice Department had repeatedly maintained that when it was merely gathering intelligence and not investigating crime, its activities were not to be judged by Fourth Amendment standards.)

In addition, Justice Powell rejected the Justice Department arguments that issues of domestic security are either "too subtle and complex" or too secret to entrust to federal judges. On the first of these claims, he noted that if the threat is so "subtle and complex" that it may not be comprehensible to a judge, the fault may lie with the proof and not with the judge. And on the latter he noted that wiretap warrants were authorized for espionage, sabotage and treason cases-all of which may involve both foreign and domestic security threats.

Expressly left open by the Court's opinion are "the issues which may be involved with respect to activities of foreign powers or their agents." And in closing, Justice Powell also observed that domestic security problems may justify "different standards" than those prescribed for electronic surveillance in the investigation of specific cases covered by Title III of the Safe Streets Act. Let me turn now to the effects of the decision and what, I suppose, is of particular concern to this body, the implications it has for future legislation.

The first point which, I think, should be made is that even though the Court proceeded through the two steps I outlined above, the second portion of its decision is a square constitutional ruling which cannot be legislatively overruled. In other words, if proponents of warrantless electronic surveillance in the domestic security area were to urge the adoption of a law which expressly provided for the authority which the Justice Department had attempted to read into Section 2511(3), their proposed legislation would be constitutionally invalid under the second portion of the Court's opinion. To be sure, the Court did look to see what Congress meant in Section 2511(3), and it spent about

six-and-a-half pages of its opinion analyzing the language and legislative history. But it did so in order to determine whether it was faced with a question of the constitutionality of a statute or simply an issue relating to the constitutionality of an Executive Branch practice which the Congress had neither approved nor disapproved. It found the latter to be true, and it then proceeded to declare the practice constitutionally unsound.

What, precisely, is the scope of the constitutional ruling? At the very least, it is that except for the "activities of foreign powers or their agents"-the kind of electronic eavesdropping which amounts to a Fourth Amendment search or seizure under Katz v. United States, 389 U.S. 347 (1967) and Berger v. New York, 388 U.S. 41 (1967)—that is, unconsented bugging or tapping— may not be conducted by government agents without a "prior judicial judgment" as to the adequacy of the evidence to warrant the infringement on privacy. (There may, of course, be an "emergency" exception of the kind described in Section 2518 (7), which authorizes up to 48 hours of unwarranted eavesdropping, although the constitutionality of this provisions has not been authoritatively determined.). It is, in other words, as plainly unconstitutional to tap a man's telephone without a warrant as it is to break into his house and search for evidence without a warrant.

This analogy brings me to a third critical element of the Court's opinion which bears serious consideration by Congress. In the majority opinion joined by six of the eight Justices, the Court was not satisfied to treat domestic security eavesdropping as equivalent to a search or seizure of physical evidence in a routine criminal investigation. Twice in the course of the discussion of the constitutional issue, Justice Powell called attention to the fact that when government officials conduct national security investigations, they jeopardize "constitutionally protected speech" more seriously than the routine investigation of crime. Two sentences in the opinion forcefully summarize this consideration: "Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect 'domestic security.'

What must be borne in mind is that the interception of a private telephone conversation-or, indeed, the threat that a private telephone conversation may be overheard by a government agent-is an impediment to free speech. And when that private discussion is subjected to an eavesdrop because its participants are "unorthodox" in their political beliefs, the danger to free speech and political expression is doubly acute. The Court's sensitivity to this risk is manifest from its warning that "private dissent, no less than open public discourse, is essential to our free society." And it behooves Congress, if it ever again deals legislatively with the question of electronic surveillance, to be as aware of these dangers as six members of the Court now are.

Other aspects of the Court's opinion deserve extended discussion. The exception of "activities of foreign powers or their agents" is the most obvious. In a long footnote, the Court's opinion defines the term "domestic organization" to include one "composed of citizens of the United States . . . which has no significant connection with a foreign power, its agents or agencies." Having rendered this definition, the Court then recognizes that there may be cases where "collaboration in varying degrees between domestic groups or organizations and agents or agencies of foreign powers" may make it difficult to discern on which side of the line an organization falls. How that determination is to be made is left in the air. And, of course, even the basic issue whether warrantless taps or bugs of "foreign organizations" posing a threat to national security are constitutionally permissible has not been decided by the Supreme Court.

Let me turn finally, however, and perhaps most importantly, to the suggestion in Justice Powell's opinion that "protective standards" for domestic security surveillance may be different from the standards which govern the investigation of ordinary crimes. This is an invitation for legislation which the Justice Department may decide to accept. In passing on what that Department may suggest to Congress and what may be offered from other sources, several considerations of both constitutional and practical significance should be kept in mind.

It may be understatement to say that the constitutional principle decided unanimously by the Supreme Court is of tremendous importance. The Court has unequivocally rejected the Justice Department's astounding suggestion that it-that is, the Attorney General-may be both prosecutor and judge of whether private conversations are so likely to endanger national security that they should be overheard. The duty and responsibility of officials of the Executive Branch, said the Court, "is to enforce the laws, to investigate and to prosecute. But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks." By repeating and reinforcing this principle-which, until the Justice Department's novel suggestion in the "national security" wiretap cases, had been taken for granted by constitutional experts the Court performed a great service for (in Justice Powell's words) "the people of our country."

Important as may be the principle that a government official wishing to tap a phone or bug a room may not do so on his own, it is only as effective in practice as the judicial authority which stands between him and the private conversation he wants to overhear. In the final analysis, the proceeding which even under the Court's ruling, must precede the tap or the bug is an ex parte proceeding. The government agent provides an affidavit to a judge in chambers, and the judge, without hearing any evidence or legal challenge on the other side and possibly without doing more than giving the papers, a cursory glance, decides whether to issue the warrant. In 90 cases out of 100 under Title III of the 1968 Act, judges have issued warrants on request of federal officials. There have been years, in fact, when the government's batting average was 1.000.

I do not totally discount the possibility that the Justice Department puts those investigations which call for electronic eavesdropping so perfectly in order that its requests for warrants are always-or virtually always-proper in content and form. The fact that some reported cases have found wiretap orders invalid (e.g., United States v. Eastman, 326 F. Supp. 1038[M.D.Pa. 19711) and overboard (United States v. Vega, 52 F.D.R. 503 [E.D.N.Y. 19711), and that a substantial defect in the Justice Department's authorization procedure has been uncovered (e.g., United States v. Focarile, 11 Crim. L. Rep. 2008 [D. Md. 1972]; United States v. Robinson, 40 U.S. Law Week 2454 [5th Cir. 1972]) tends to show, however, that not all is as perfect as it may seem from the statistics of success. And my own experience of six years in three Divisions of the Department of Justice—one of which oversees the work of most of the others makes me skeptical of any such possibility. I saw far too many cases of inadequately drawn search and arrest warrants-even in notorious cases where time and effort were not spared-to believe that suddenly eavesdropping warrants are immune from the viruses of sloppiness and inefficiency which occasionally strike civil servants.

The danger that a Justice Department eavesdropping warrant application may be routinely rubber-stamped by a sympathetic judge is accentuated, of course, not only by the ex parte nature of the proceeding but also by the government's ability to choose its judge. In most every district there are judges who will, in such an uncontested proceeding, routinely give the government what it wants. And so the Supreme Court's rule that there must be an "independent check upon executive discretion" is likely to be more important in principle than effective in practice.

It is my opinion-and I offer it as such-that far more effective practical checks on unbridled electronic surveillance are the less well-known provisions of Title III. Specifically, I refer to the requirements of Section 2518 (8), which direct that recordings be kept of all intercepted conversations and that they be maintained under seal for ten years, and that within 90 days of the termination of a surveillance the subject of the surveillance be served with an inventory of the overhearing. These retention and service requirements, as well as the time limitation prescribed by Section 2518(5)—which authorizes an initial 30-day interception period and not more than one 30-day extension-act as a substantial restraint. How effective they are can be seen by comparing the practices which the Justice Department has followed to date in its "national security" investigations (where it has not viewed itself as being bound by the provisions of Title III) with those in Title III cases. Uniformly, recordings of "domestic security" wiretaps have been erased "in the ordinary course of busi

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ness." Uniformly, subjects of "domestic security" surveillance have not been told, even after the taps or bugs were removed, that they had been subject to eavesdropping orders. And, as recent correspondence between the Chairman of the Subcommittee and the Department of Justice has disclosed, security wiretaps and bugs have been continued for longer than the 30 or 60-day periods envisioned by Title III.

So long as the Department of Justice must file, with a federal court, albeit under seal, a complete recording of its wiretap, so long as the duration of a bug or tap is limited in time, so long as it must be disclosed, after that limited time, to the subject of the surveillance, substantial external checks-possibly more effective than a judge's hurried review of its papers-are protecting the public against rash judgments. And this is particularly true when these provisions are reinforced by the civil damage remedy of Section 2520 (so that an individual who is notified of an eavesdrop may sue for damages) and by the direction in Section 2518 (5) that a surveillance must "be executed as soon as practicable" and must "be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter," and when the affidavit supporting the application must specify why "other investigative procedures” cannot be used. If these peripheral safeguards were wiped away, the judicial warrant requirement would, I believe, be protective in shadow, but not in substance.

Justice Powell's opinion suggested three areas in which Congress might provide "different standards" for "national security" warrants than for others. The first two relate to the nature of the application and affidavit and to the court to which the application should be directed. The third area-which I view as far more critical-relates to "the time and reporting requirements" of Section 2518. I would strongly urge that if, in fact, amendatory legislation is considered—and even that step should not be taken unless the Justice Department demonstrates a strong need for amendment-no exception be permitted from the important provisions of Section 2518 for any kind of electronic surveillance.

Senator KENNEDY. You were here during Mr. Maroney's testimony about how the Justice Department will interpret the Keith opinion. Do you have any comments you would like to make about that interpretation?

Mr. LEWIN. There were two aspects of Mr. Maroney's testimony which I thought were encouraging and of course, very many which I thought were distressing.

The two that I though were encouraging were first, that the Department, apparently, will not claim any authority to conduct any wiretaps in the domestic area other than pursuant to title III. That had not been clear from the Attorney General's statement after the Keith case, and I think there had been some concern as to whether they might seek to devise some means of obtaining some judicial approval, but still not meeting the title III requirement. So I think that has been clarified, and I think to the good.

The second encouraging remark that Mr. Maroney made was that they are not looking for any amendatory legislation, therefore they are not going to be taking up Justice Powell's interpretation that they seek different standards for domestic wiretaps. Essentially, what he has said, I think, what the Government has in effect confessed by withdrawing those six wiretaps and making no proposal for amendatory legislation is that those wiretaps were not essential to the national security. Apparently, the Government is prepared to go ahead and there is no threat to our national security because on June 20, they were removed, and they are not going to reinstall them. Nor are they going to look for legislation under which they would be able to reinstall them. So those two aspects of his testimony I think are encouraging.